Schenke v. Phelps

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

JAMES K. SCHENKE, )

)

Plaintiff, )

)

v. NO. 4:18CV87-PPS/JEM

)

QUENTIN PHELPS, Patrol Officer, )

JASON DOMBKOWSKI, Police Chief, )

JOHN DENNIS, Mayor, )

DAVID LORD, Lieutenant, )

ADAM FREGUSON, Patrol Officer, )

ANY TBD WLPD OFFICER

)

INVOLVED,

)

MATT ROSENBARGER, Detective,

KEENE RED ELK, Captain, and )

ANY TBD PUPD OFFICER )

INVOLVED, )

)

Defendants.

)

OPINION AND ORDER

Acting on his own without an attorney, James K. Schenke filed this lawsuit

against a group of defendants associated with the City of West Lafayette, Indiana, and a

smaller group of defendants associated with the Purdue University Police. Both groups

of defendants have filed a motion to dismiss Schenke’s complaint. Schenke has not filed

any opposition to either motion.

Schenke’s complaint tells a convoluted tale, and not in chronological order.

Schenke begins with the events of November 11, 2016, when he says that he was

“falsely arrested” by West Lafayette police officers “led by [defendant] patrolman

Quentin Phelps.” [DE 1 at 2.] Schenke claims that without cause the officers were

physically abusive, including by slamming Schenke’s head into the top of a police car

and by elbowing Schenke in the throat. The arrest was apparently on public intoxication

charges, which were later dismissed. Also alleged is that Schenke “had been verbally

and physically assaulted by drunken, belligerent college students who at one point in a

brawl that started among themselves, nearly knocked Schenke down.” [DE 1 at 2.]

The day also reportedly involved several trips for Schenke to St. Elizabeth’s

Hospital – earlier for a scheduled surgery that was cancelled because Schenke had an

infection, then later for a health check as part of Schenke’s arrest and detention. Schenke

alleges that he had asked Phelps and other officers for help because he’d locked his keys

in his car, but they refused that help and advised him to check into a motel. This

presumably happened before the false arrest. Then there are allegations about Schenke’s

“supposed victim, Christina,” and the officers’ failure to speak with her, which Schenke

insists would have cleared up any suggestion of wrong-doing on his part. [DE 1 at 3.]

The complaint goes on to relate that Schenke’s wife filed for divorce four days

later on November 15, 2016, and, based on the public intoxication arrest, the court

issued a no-contact order that rendered Schenke homeless. Schenke alleges that the

public intoxication charge and protective order had further ramifications. These

included defendant Red Elk, captain of the Purdue University Police Department,

allegedly “pounc[ing] on” Schenke to advise him not only that he was terminated from

employment with the university, but was also persona non grata on the campus. [DE 1 at

4.]

Schenke alleges that, also based on the protective order, Tippecanoe County

deputy sheriffs seized Schenke’s lawfully-owned firearms. Schenke contends that the

West Lafayette Police Department continues to illegally harass and falsely arrest him

based on the protective order, even though it was later “gutted then vacated.” [Id. at 4.]

The complaint contains some facts about an arrest by unnamed WLPD officers in a

restaurant in January 2017, somehow relating to a birthday present Schenke had sent for

his daughter to her grandmother’s home. Unnamed WLPD officers are also alleged to

have caused Schenke’s church to sign a no trespass order against him. The complaint

then appears to circle back to additional details about the events of November 11, 2016,

followed by allegations about Schenke’s history with WLPD Chief Jason Dombkowski

and Mayor John Dennis. As for the nature of Schenke’s legal claims, the complaint

makes references to false arrest, harassment and violations of First and Second

Amendment rights.

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, “a complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks and citation omitted). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

The group calling themselves the West Lafayette Defendants are those Schenke

has named as Patrol Officer Quentin Phelps, Mayor John Dennis, Police Chief Jason

Dombkowski, Patrol Officer Adam Ferguson, and Lieutenant David Lord. They

describe the complaint as containing “22 paragraphs of ‘claims and facts’ which are a

combination of legal conclusions and unclear and vague declarations that lack any

coherent progression or relevance” along with “24 pages of attachments which are

given no explanation.” [DE 10 at 1.] The “Purdue Defendants” are Matt Rosenbarger

and Keene Red Elk, and their motion to dismiss adopts the West Lafayette Defendants’

arguments that the complaint fails to comply with the pleading requirements of Rules 8

and 10 of the Federal Rules of Civil Procedure. [DE 14 at 2.]

Although a pro se plaintiff’s filings are given the benefit of a generous

interpretation, he is still required to follow the Rules of Civil Procedure. Abu-Shawish v.

United States, 898 F.3d 726, 738 (7th Cir. 2018); Townsend v. Alexian Brothers Medical

Center, 589 Fed.Appx. 338, 339 (7th Cir. 2015). Schenke’s complaint fails to comply with a

number of procedural rules. First, I note that the local rules of this court require all

pleadings (such as complaints), motions and briefs to be double-spaced, and to “include

a separate index identifying and briefly describing each exhibit if there are more than

four exhibits.” N.D.Ind. L.R. 5-4(a)(5), (8). It’s unclear how many separate exhibits

Schenke’s attachments are.

Complaints are pleadings, and so are subject to the requirements of Fed.R.Civ.P.

10(b): “A party must state its claims or defenses in numbered paragraphs, each limited

as far as practicable to a single set of circumstances,” and “each claim founded on a

separate transaction or occurrence…must be stated in a separate count…” Schenke’s

single-spaced paragraphs are lengthy and dense, and so fail to comply with Rule 10(b),

as well as Fed.R.Civ.P. 8(d)(1), which requires that “[e]ach allegation must be simple,

concise and direct..” These shortcomings of the complaint make it impossible for

defendants to readily “admit or deny the allegations asserted against [them] by an

opposing party” as they are required to do by Rule 8(b)(1)(B).

Rule 8’s General Rules of Pleading include that a complaint contain “a short and

plain statement of the grounds for the court’s jurisdiction,” and “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Schenke’s

complaint contains no jurisdictional statement at all, and cannot be said to offer a short

and plain statement of his various claims against particular defendants. The confusing

narrative presentation of facts and claims deprives the defendants of “fair notice of

what the…claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550

U.S. 544, 555 (2007). I agree with the West Lafayette defendants that, to too large an

extent, the complaint “improperly requires Defendants to guess and speculate what

wrongful act plaintiff may be alleging and extrapolate from that what violation plaintiff

may be claiming caused his damages and the legal basis he has for making that claim.”

[DE 10 at 2.]

While I construe Schenke’s complaint liberally because he is acting without

counsel, the complaint in its present form defies a construction that is intelligible and

meets the standards of Rules 8 and 10 without organizing the plaintiff’s legal theories

and claims for him. Such a complaint must be dismissed under Rule 12(b)(6): “where

the lack of organization and basic coherence renders a complaint too confusing to

determine the facts that constitute the alleged wrongful conduct, dismissal is an

appropriate remedy.” Stanard v. Nygren, 658 F.3d 792, 798 (7th Cir. 2011).

The excessive and meandering detail of Schenke’s fact pleading makes it

“impossible for the district court to identify the specific allegations against each

defendant and therefore impossible to determine whether there are potential claims

against any of them.” Griffin v. Milwaukee Cty., 369 Fed.Appx. 741, 743 (7th Cir. 2010).

Complaints are supposed to be “straightforward, so that judges and adverse parties

need not try to fish a gold coin from a bucket of mud.” U.S. ex rel. Garst v. Lockheed-

Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003). See also Davis v. Anderson, 718 Fed.Appx.

420, 424 (7th Cir. 2017).

The result of this analysis is that the complaint must be dismissed pursuant to

Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted, but to

allow Schenke an opportunity to remedy the defects of his pleading by filing an

amended complaint. In the Seventh Circuit, “the usual standard in civil cases is to allow

defective pleadings to be corrected, especially in early stages, at least where amendment

would not be futile.” Abu-Shawish, 898 F.3d at 738.

A few coins could be extracted from the bucket of mud that is Schenke’s

complaint, and the defendants have made some legal arguments against the merits of

particular claims where they could be identified. The West Lafayette defendants

erroneously make a two-year statute of limitations argument against any federal civil

rights claims brought under 42 U.S.C. §1983 concerning events of November 11, 2016,

wrongly asserting that the complaint was “filed on November 20, 2018.” [DE 10 at 7.] In

fact, the complaint was filed on November 9, 2018. [DE 1.]

The West Lafayette defendants point out that defendants David Lord and Adam

Ferguson are not mentioned within the complaint. Obviously, Schenke has not stated

any viable claims against Lord or Ferguson if he has failed entirely to allege what

actions they took and any basis for their liability to him. “[P]ublic employees are

responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555

F.3d 592, 596 (7th Cir. 2009). See also Lennon v. City of Carmel, Indiana, 865 F.3d 503, 507

(7th Cir. 2017) (failure to allege that named defendants were personally involved is a

“fatal flaw” in a suit under section 1983). Besides naming individuals and then making

no allegations about their conduct, Schenke has a habit of referring generally to

categories of officers and officials (such as “WLPD officers,” “Tippecanoe Sheriff

Deputies” and “Purdue and West Lafayette officials”) without identifying the conduct

of particular actors. The doctrine of respondeat superior, which allows an employer to

be held liable for subordinates’ actions in some types of cases, has no application to §

1983 actions for civil rights violations. Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th

Cir. 1993).

To the extent that the complaint lists “Any TBD WLPD officer involved” in the

list of defendants on page 1, no claim is stated either. The Court of Appeals has said that

“it is pointless to include lists of anonymous defendants in federal court; this type of

placeholder does not open the door to relation back under Fed.R.Civ.P. 15…nor can it

otherwise help the plaintiff.” Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997).

Schenke’s list of defendants repeats this same phrase but corresponding to an address

for the Purdue University Police, so I presume that he intended the same sort of John

Doe placeholder for those officers as well, but it is unavailing for the same reason.

The West Lafayette Defendants also point out that “harassment” is not sufficient

to state a constitutional claim under 42 U.S.C. §1983 (if that was Schenke’s intent).

Courts have long recognized that: “Citizens do not have a constitutional right to

courteous treatment by the police. Verbal harassment and abusive language, while

‘unprofessional and inexcusable,’ are simply not sufficient to state a constitutional

claim[.]” Slagel v. Shell Oil Refinery, 811 F.Supp. 378, 382 (C.D.Ill. 1993), quoting Patton v.

Przybylski, 822 F.2d 697, 700 (7th Cir. 1987). See also Fuson v. City of Indianapolis, 2016 WL

1270203, at *13 (S.D.Ind. Mar. 31, 2016) (“Quite simply, the Fourth Amendment does not

protect citizens from being treated rudely by police officers.”).

The West Lafayette Defendants argue that the existence of probable cause defeats

any claim for false arrest or illegal search and seizure. In support, they rely upon

statements in the police report Schenke has attached to his complaint, but those “facts”

are clearly disputed by the complaint’s factual allegations concerning Schenke’s

sobriety and behavior that night. Probable cause and qualified immunity

determinations cannot be made at this juncture. Neither can the West Lafayette

Defendants argue their way to judgment on the merits of any excessive force claims or

punitive damages under federal law at this stage of the case. Generalized arguments

about the availability of state law claims, and about damages under state law, are

premature as it is unclear from the current complaint what if any state law claims are

alleged.

The Purdue Defendants rightly point out that the Eleventh Amendment bars

actions in federal court against state officials acting in their official capacities. “A

plaintiff cannot bring a claim for damages against state personnel in their official

capacities.” Haynes v. Indiana University, 902 F.3d 724, 732 (7th Cir. 2018). Sovereign

immunity also bars a damages action against state defendants in their individual

capacities if any resulting judgment would be paid by the state treasury. Id.

CONCLUSION

Both motions to dismiss will be granted because James Schenke’s complaint is

subject to dismissal for failure to state a claim. But he will be given an opportunity to

revise his pleading and file an amended complaint. Schenke’s failure to timely file an

amended complaint will result in the dismissal of his case with prejudice. If Schenke

persists with the litigation, he should take advantage of the considerable guidance on

the requirements for a viable complaint contained in this opinion.

ACCORDINGLY:

The Motion to Dismiss of defendants Phelps, Dennis, Dombkowski, Lord and

Ferguson [DE 9] is GRANTED.

The Motion to Dismiss of defendants Rosenbarger and Red Elk [DE 13] is

GRANTED.

The complaint [DE 1] is DISMISSED.

Plaintiff Schenke is granted to July 19, 2019 to submit an amended complaint. If

he fails to do so, this case will be dismissed without further notice.

SO ORDERED.

ENTERED: June 17, 2019.

/s/ Philip P. Simon

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT